What physicians need to know about telemedical liability

As with any medical practice, there are liability issues physicians should consider when engaging in the practice of medicine using telemedicine technologies. An expert in legal medicine gives his take on what physicians should know.

Joseph McMenamin, MD, has more than 28 years of experience practicing health-related law. Dr. McMenamin provided physicians at the AMA State Legislative Strategy Conference last month in New Orleans with insight on the potential liability climate resulting from use of telemedicine and outlined key steps physicians can take to minimize potential risk.

Define the minimum requirements to establish the doctor-patient relationship

This is the fundamental question in telemedicine, Dr. McMenamin said. It’s crucial to determining whether the physician has a duty to the patient, which is important in tort claims. For example, states could consider adopting the AMA model state legislation (log in), which outlines steps to establish a proper patient-physician relationship prior to the use of telemedicine.

The AMA’s principles for telemedicine specify that a valid patient-physician relationship must exist before using telemedicine, through:

A face-to-face examination, if a face-to-face encounter would be required in the provision of the same service in the real world

A consultation with another physician who has an ongoing patient-physician relationship with the patient

As part of its telemedicine principles, the AMA is calling for educational resources to help physicians navigate this emerging field. The principles also advise physicians to make sure their liability insurance covers telemedicine services—especially for patients in other states—before engaging in such activities.

Physicians and other health practitioners delivering telemedicine services must abide by state licensure laws and requirements as well as state medical practice laws, including laws concerning consent involving minors, prescribing, reproductive rights, end-of-life decisions and scope of practice.

The AMA’s principles thus call for physicians practicing telemedicine to maintain licensure in the state where the patient is located. Similarly, model AMA state legislation (log in) ensures that, with exceptions such as curbside consultations, volunteer emergency medical care, physicians and other health practitioners practicing telemedicine are licensed in the state where the patient receives services, or providing these services as otherwise authorized by that state’s medical board.